The Early Regulatory Process to Permit the Remediation

It's safe to say that these industrial waste impoundments would not be allowed to be built today. They are unlined and designed to allow water in the sludge to migrate directly to ground and surface waters. Laws prohibiting this practice came into effect 30 years ago. As a result, the permitting path for closing them was unclear as most similar facilities had been closed long ago. The team, together with the Department, had to figure out which division (SRP, Solid Waste or Water) should take the lead for the closure of the impoundments.

For legal reasons stemming from case law decades ago, it was decided in 1990 that the site would not be permitted to operate under a NJPDES permit in the Water program (a NJPDES permit was retroactively withdrawn effective back to 1989) so the Division of Water was removed from consideration.

The residuals in the impoundments were not managed under the Solid Waste program (in fact the site was improperly listed as a "landfill" rather than "impoundments"). After months of debate, "landfill closure" under the Solid Waste Program was also excluded.

The decision about how to permit the remedial action was further complicated by a No Further Action (NFA) letter which had been issued for the site in 2002. Essentially, this letter, based on environmental conditions known at the time, allowed the site to remain "as-is" with specific engineering (berm maintenance, warning signs and security fencing) and institutional (deed restrictions) controls. Understandably, the Department had to reconcile the NFA with the new-found contamination in the uncapped sludge, and the new dangers posed by the deteriorating berms. In its current condition, the property was "unusable" for virtually any purpose, even as habitat (due to the exposed contaminated sludge and unstable geotechnical condition); this also played a part in the decision.

Internal discussions at the Department went on for a year (July 2010 to July 2011), during which time the site was investigated and found to be out of compliance with the required engineering controls. When DEP was provided with the investigation reports, the Department decided that the SRP program, which had been regulating the site since 1990 and had required a Declaration of Environmental Restrictions, should undertake the resolution of the now necessary clean-up work.

Records show that, already in 2004, the Department was concerned about the lack of a final cover system which then allowed: direct contact with the sludge; infiltration of rainwater through the contaminated material; and an ongoing risk of dusting of exposed dried sludge, but the NFA had already been issued. Fences and signage were designed to keep people off the site, but trespassers and wildlife were still able to access the secluded site, and the direct contact dangers were evident. Voluntary capping work was suggested by Land Use personnel to cap the site.

So in 2004, the previous landowners voluntarily tried once again to develop a dredge-based cover system and worked with the Department for several years to accomplish this. Preliminary site work was completed; including berm repairs, internal road maintenance and extensions, and reconstruction of the bridge to the site, presumably in advance of the capping work. In addition, geotechnical and other engineering investigations were initiated, but the dredge-based capping efforts failed again due to economic and acceptable dredge supply constraints.